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Replies of the NMLA's to the 1St Questionnaire .Pdf 3.67 MB COMITE MARITIME INTERNATIONAL SALVAGE CONVENTION QUESTIONNAIRE TO MEMBER ASSOCIATIONS RESPONSES OF THE ARGENTINE MARITIME LAW ASSOCIATION The CMI Executive Council has set up an International Working Group (IWG) to consider whether any changes need to be made to the Salvage Convention 1989. The questionnaire which follows has been developed with a view to collecting your views on areas which have been identified by the International Salvage Union as possibly needing reform. We would be grateful if you would provide your responses to this questionnaire as soon as possible. 1. Article 1 in the Salvage Convention 1989 contains the following definition: "For the purpose of this Convention: (d) Damage to the environment being substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents." (Emphasis added) Comments 1.1 The International Convention on Civil Liability for Oil Pollution Damage, 1992, defines "Pollution damage" in Article 1 paragraph 6 as meaning: "(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profits from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken." (Emphasis added) Article II of that Convention also provides: "This Convention shall apply exclusively: (a) to pollution damage caused: (i) in the territory, including the territorial sea, of a Contracting State, and (ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending nor more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured; (b) to preventive measures, wherever taken, to prevent or minimise such damage." (emphasis added) JS5DDVT42X The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 defines damage in Article I paragraph 6 as meaning: "(b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances; (c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;" (emphasis added) Article III of that Convention provides as follows: "This Convention shall apply exclusively: (a) to any damage caused in the territory, including the territorial sea of a State Party; (b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured; (c) to damage, other than damage by contamination of the environment, caused outside the territory, including the territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and (d) to preventive measures, wherever taken" (Emphasis added) The International Convention on Civil Liability for Bunker Oil Pollution Damage (2001) provides as follows: Article I paragraph 9 defines "Pollution damage" as meaning: "(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;" (Emphasis added) Article II provides as follows: "This Convention shall apply exclusively: (a) to pollution damage caused: (i) in the territory, including the territorial sea, of a State Party, and (ii) in the Exclusive Economic Zone of a State Party, established in accordance with international law, or, if a State Party has not established such a Zone, in an area beyond and adjacent to the territorial sea JS5DDVT42X 2 of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the base lines from which the breadth of its territorial sea is measured (b) to preventive measures, wherever taken, to prevent or minimise such damage." (Emphasis added) It will be seen that the International Conventions that deal with the liability for causing pollution are not as restrictive in the geographical scope of the Convention as the definition contained in the Salvage Convention in Article 1(d) quoted above. It will be seen that the words emphasised in that definition leave considerable scope for debate as to what is intended by those limiting words, particularly when the liability conventions seem to envisage preventive measures being taken anywhere, including on the high seas and the pollution damage itself can taken place anywhere within the exclusive economic zone. Question: 1.2 Do you consider that the words emphasised above in the definition contained in Article 1(d) of the Salvage Convention ("in coastal or inland waters or areas adjacent thereto") should be deleted? ANSWER: Yes, we consider that words: “in coastal or inland waters or areas adjacent thereto”, should be deleted. 1.3 Alternatively do you think words such as those used in the other Conventions which have been quoted above (eg "where ever such may occur"/"exclusive economic zone"/"territorial sea") should replace those words in Article 1(d) of the Salvage Convention? ANSWER: Yes, in order to widen the scope of application of the Convention and to be consistent with the other international conventions previously quoted, the words: "where ever such may occur" should be included. 1.4 Have there been any reported cases in your jurisdiction in which the word "substantial" (which is contained in Article 1(d) of the Salvage Convention), as used in that definition, have been interpreted? ANSWER: Argentina, is not a State Party to the 1989 Salvage Convention. 1.4.1 If so, could you provide a copy of the decision? ANSWER: See the answer above. 1.4.2 If there have been no such cases in your jurisdiction do you think it likely that the word "substantial" could create difficulties of interpretation? ANSWER: We think that the word “substantial” should be maintained or replaced by another word to put clear that the damage to the environment should be considerable or of importance to allow the operation of the Special Compensation. A minimum damage would not suffice to trigger this exceptional system. 1.4.3 If so, do you consider that there is any other word or group of words that could better identify what is intended by the definition? ANSWER: See answer to question 1.4.2 above 1.5 Do you think that where an incident occurs that could give rise to dangers to navigation (for example a loss of containers at sea) would be covered by the definition in Article 1(d) (ie do you think it would be held in your JS5DDVT42X 3 jurisdiction to come within the meaning of the words "or similar major incidents")? ANSWER: Argentina, as said above, is not a State Party to the Convention, and, therefore, our Courts would not render opinion on the issue. An occurrence that causes dangers to navigation would not fall within the definition of Article 1 (d), save that from the circumstances surrounding the incident a serious and real risk to the environment could reasonably be produced. In the same direction, a loss of containers at sea does not imply by itself a risk of environmental damage, but the environmental damage could be present if the cargo stuffed into them, or by other circumstances such as sensitivity of the area or dense navigation in a narrow channel, could lead to a threat of physical damage to human health or to the marine life or resources. 1.5.1 If you think there is a risk that such incidents may not be covered by the definition in Article 1(d), do you think that the definition should be widened? ANSWER: No, see answer to 1.5 1.5.2 If so, can you suggest any wording that you think might be appropriate? ANSWER: See answer to 1.5.1 2. Article 5 in the Salvage Convention 1989 provides as follows: "Salvage operations controlled by public authorities 1. This convention shall not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities. 2. Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations. 3. The extent to which a public authority under a duty to perform salvage operations may avail itself of the rights and remedies provided for in this Convention shall be determined by the law of the State where such authority is situated." JS5DDVT42X 4 Question: 2.1 Can public authorities pursue claims for salvage in your jurisdiction? ANSWER :According to Section 386 of our Navigation Act, public vessels can pursue claims for salvage in our jurisdiction.
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